Jaya Jain, Hyderabad V. ITO,Ward 8(2), Hyderabad

ITA 612/HYD/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7619 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 04-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.612/HYD/2014 ASSESSMENT YEAR 2009-2010 SMT. JAYA JAIN HYDERABAD PAN AGAPJ6956G VS. ITO WA RD - 8(2) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : MR. S. RAMA RAO FOR REVENUE : MR. SOLGY JOSE T. KOTTARAM DATE OF HEARING : 12.08.2014 DATE OF PRONOUNCEMENT : 20.08.2014 ORDER PER SAKTIJIT DEY, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 13.01.2014 OF CIT(A)-III, HYDERABAD DIS MISSING ASSESSEES APPEAL PERTAINING TO THE ASSESSMENT YEAR 2009-10 IN LIMINI. 2. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVI DUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE SHE FILED HER RET URN OF INCOME ON 04.12.2009 DECLARING TOTAL INCOME OF RS.1 ,84,625/-. AS MENTIONED IN THE ASSESSMENT ORDER, THOUGH IN RES PONSE TO NOTICE ISSUED U/S 142(1) & 143(2) OF THE INCOME-TAX ACT, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED BUT HE DID NOT SUBMIT ANY INFORMATION. THEREFORE, THE ASSESSI NG OFFICER ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE PROPOSIN G TO MAKE CERTAIN ADDITIONS. IN RESPONSE TO SUCH SHOW CAUSE NOTICE SINCE NO ONE ON BEHALF OF THE ASSESSEE APPEARED NOR ANY I NFORMATION WAS FURNISHED, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 144 BY MAKING CERTAIN ADDITIONS TO THE TOTAL IN COME 2 ITA.NO.612/HYD/2014 SMT. JAYA JAIN, HYDERABAD DECLARED BY THE ASSESSEE WHICH RESULTED IN DETERMIN ATION OF TOTAL INCOME AT RS.27,21,670/-. THE ASSESSEE CHALL ENGED THE ASSESSMENT ORDER SO PASSED BY PREFERRING AN APPEAL BEFORE THE CIT(A). AS IT APPEARS FROM THE ORDER OF THE CIT(A) , ON PERUSAL OF THE MEMORANDUM OF APPEAL FILED IN FORM NO.35, HE NOTICED THAT ASSESSEE HAS MENTIONED THE DATE OF RECEIPT OF THE ASSESSMENT ORDER AS 28.5.2012. HOWEVER, ON EXAMINI NG THE ASSESSMENT ORDER, THE CIT(A) NOTED THAT NOT ONLY TH E ASSESSMENT ORDER WAS PASSED ON 01.11.2011, BUT THE SAME WAS ALSO DISPATCHED ON THE VERY SAME DAY I.E. 01.11 .2011. HE THEREFORE CONCLUDED THAT IT IS BEYOND HUMAN PROBABI LITY THAT THE ASSESSMENT ORDER, WHICH WAS DISPATCHED ON 01.11 .2011 COULD ONLY BE SERVED ON THE ASSESSEE ON 28.5.2012. HE THEREFORE WAS OF THE OPINION THAT THE DATE OF RECEI PT NOTED BY THE ASSESSEE AS 28.5.2012 IS ONLY TO FACILITATE AND MAKE IT APPEAR THAT THE APPEAL IS IN TIME. THE CIT(A) FINA LLY CONCLUDED THAT AS THE APPEAL WAS FILED BEYOND THE PRESCRIBED TIME AND THE ASSESSEE HAD NOT FILED ANY PETITION FOR CONDONI NG THE DELAY, THE APPEAL OF THE ASSESSEE CANNOT BE ENTERTAINED. ACCORDINGLY, HE DISMISSED THE APPEAL EX-PARTE IN LIMINI BY OBSER VING AS UNDER: 3. HOWEVER IN THE APPEAL FORM NUMBER 35 THE APPELLANT HAS STATED THAT THE ORDER WAS RECEIVED ON 28.5.2012 I.E., MORE THAN 10 MONTHS AFTER THE LOCAL DISPATCH. ABSOLUTELY NO EVIDENCE HAS BEEN PROVIDED BY THE APPELLANT. ON TH E CONTRARY THE DATE OF DISPATCH IS CLEARLY VISIBLE ON THE ASSE SSMENT ORDER ITSELF. THE APPEAL HAS BEEN FILED ON 31.5.2012 I.E., LATE B Y FIVE MONTHS. IT IS BEYOND HUMAN PROBABILITY THAT THE ORDER WHICH WAS DISPATCHED ON 1 ST NOVEMBER 2011 WOULD TAKE SO MANY MONTHS TO REACH ITS LOCAL DESTINATION. IT IS VERY CLEAR THAT THE APPELLANT HAS PLACED A DATE IN FORM NUMBER 35 O NLY TO FACILITATE AND TO MAKE IT APPEAR THAT THE APPEAL IS IN TIME. NO APPLICATION FOR CONDONATION OF DELAY IN FILING HAS BEEN GIVEN BY THE APPELLANT. 3 ITA.NO.612/HYD/2014 SMT. JAYA JAIN, HYDERABAD 4. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, I HAVE NO OPTION BUT TO HOLD THAT THE APPEAL IS BEYON D TIME AND THE HUGE DELAY IN FILING OF THIS APPEAL CANNOT BE C ONDONED. 3. THE LD. A.R. SUBMITTED BEFORE US THAT ACTUALLY T HE ASSESSEE HAD NEVER RECEIVED THE ORIGINAL ASSESSMENT ORDER AND DEMAND NOTICE. ONLY AFTER COMING TO KNOW FROM THE A.O. THAT ASSESSMENT ORDER FOR THE IMPUGNED ASSESSMENT YEAR H AS BEEN PASSED, SHE APPLIED FOR A COPY OF THE ORDER AND ONL Y AFTER RECEIVING THE SAME ON 28.5.2012, THE APPEAL WAS FIL ED BEFORE THE CIT(A) ON 31.5.2012. HENCE, IT IS THE CONTENTI ON OF THE LD. A.R. THAT THERE IS NO DELAY IN FILING THE APPEAL AN D THE CIT(A) WAS NOT JUSTIFIED IN DISMISSING ASSESSEES APPEAL E X-PARTE IN LIMINI ON THE GROUND OF DELAY WITHOUT PROPERLY APPR ECIATING THE FACTS AND WITHOUT GIVING AN OPPORTUNITY TO THE ASSE SSEE TO EXPLAIN HIS CASE. 4. THE LD. D.R. ON THE OTHER HAND RELIED ON THE ORD ER OF THE CIT(A). 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE IMPUGNED ORDER OF THE CIT(A) AS WELL AS OTHER MATERIALS ON RECORD. AS CAN BE SEEN FROM THE FACTS AND MATERIALS ON RECORD, THE ASSESSMENT IN CASE OF THE ASSESSEE WAS COMPLETED U/S 144 OF THE ACT, IN ABSENCE OF COM PLIANCE BY THE ASSESSEE. SIMILARLY, CIT(A) ALSO DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINI WITHOUT GIVING HER AN OPPORTUNIT Y OF HEARING BY PRESUMING THAT THE DATE OF RECEIPT OF ORDER MENT IONED BY THE ASSESSEE AS 28.5.2012 TO BE FALSE. IT IS ALSO APPARENT FROM THE ORDER OF THE CIT(A) THAT HE HAS TREATED THE APP EAL TO HAVE BEEN FILED LATE BY 5 MONTHS BY ASSUMING THAT THE AS SESSMENT ORDER WAS DISPATCHED AND SERVED ON THE ASSESSEE ON 01.11.2011, THE VERY SAME DAY THE ASSESSMENT ORDER WAS 4 ITA.NO.612/HYD/2014 SMT. JAYA JAIN, HYDERABAD PASSED. HOWEVER, ON WHAT BASIS THE CIT(A) HAS COME TO THE CONCLUSION THAT THE ASSESSMENT ORDER WAS DISPATCHED ON 01.11.2011 AND SERVED ON THE ASSESSEE ON THE VERY S AME DAY IS NOT FORTHCOMING FROM THE RECORD. IN ANY CASE OF THE MATTER, BEFORE DISMISSING ASSESSEES APPEAL ON THE GROUND O F DELAY, THE CIT(A) SHOULD HAVE EXTENDED REASONABLE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN HER CASE ON THE ISSUE OF ALLEGE D DELAY IN FILING THE APPEAL. HOWEVER, AS IT APPEARS FROM REC ORD, NO SUCH OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE TO EXPLA IN THE CASE. IN THE AFORESAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE CIT(A) IS IN VIOLATION OF RULES OF NATURAL JUSTICE. ACCORDINGLY, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE MATTER BACK TO HIS FILE FO R CONSIDERING THE ISSUE AFRESH AFTER GIVING A FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IF IT IS FOUND FROM RECORD THAT THE ASSESSMENT ORDER WAS NEVER SERVED ON THE ASSESSEE ON 01.11.201 1 AND WAS ONLY SERVED ON HER ON 28.5.2012 IN TERMS WITH THE S TATUTORY PROVISION, THEN CIT(A) SHOULD HEAR THE APPEAL ON ME RIT WITHOUT INSISTING UPON CONDONATION OF DELAY. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH UGUST , 2014. SD/- SD/- (B. RAMAKOTAIAH) (SAKTIJIT DEY) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 20 TH AUGUST, 2014 VG/SPS 5 ITA.NO.612/HYD/2014 SMT. JAYA JAIN, HYDERABAD COPY TO : 1. SRI S. RAMA RAO, ADVOCATE, FLAT NO.102, SHRIYAS ELEGANCE, H.NO.3-6-643 ST.NO.9, HIMAYATNAGAR, HYDERABAD-500 0 29. 2. THE ITO WARD-8(2), HYDERABAD 3. THE CIT(A)-III, HYDERABAD 4. THE CIT-II, HYDERABAD 5. D.R. ITAT, B BENCH, HYDERABAD.